The dubious debate over Afzal Guru's hanging

The hanging of Afzal Guru for his role in the terror attack on the Indian parliament has elicited much reaction, mostly in black and white terms. Those in favour see the support as a sign, perhaps a test, of nationalism. Those opposed to it mainly fall under three categories.

First are the people who completely oppose capital punishment, whether for Qasab or for the alleged rapists in the Delhi gang rape case. With only 43 countries routinely using capital punishment although 139 have it on their statutes this is an intellectually consistent position.

Pakistanis gather during a protest in Islamabad to condemn the execution of Mohammed Afzal Guru, who was hanged on Saturday. Pic/AFP

After Qasab’s hanging, Sachin Kalbag has already made a cogent case in these pages for debating the death penalty (‘Time to start death penalty debate’, November 22, 2012). But these people have to work to get the law of the land, as it stands today, changed. Till then, all of us have to accept death penalty as a legal and valid punishment.

The second strand of opposition is from those who believe that Afzal Guru’s hanging is politics at play. It may be fashionably popular to use the word politics disparagingly but democratic governance is about politics. The alternative to democratic politics is dictatorship, whether of the Mugabe or the Musharraf kind, or of the Shariah that Syed Geelani wants imposed in Jammu & Kashmir.

If this is politics and nothing better to appreciate this politics than watch the recent Spielberg movie, Lincoln then this is good politics. Those who believe that this is cynical opportunism by the government won’t be convinced but they have a valid concern about the discretion available to the executive to decide the time of the hanging. That needs an informed public debate: can criminals ordained to die be kept waiting interminably?

But the shrillest opposition to Afzal Guru’s hanging has come from those who believe that justice was not served in this case and all the instruments of the Indian state (including the Supreme Court) connived to target an ‘innocent’ Kashmiri Muslim. The subtle message being conveyed is that Afzal Guru was hanged by a communal Indian state because he was a Kashmiri and a Muslim. The message is being lapped up in Pakistan whose existential identity as a country rests on portraying India as anti-Muslim.

It is also being abetted by that section of Indian intelligentsia which, to use Christopher Hitchens’ words, believes that if the Indian state “was doing something, then that thing could not by definition be a moral or ethical action.” However unpalatable this might be to many of us, it actually showcases India’s vibrant liberal credentials unlike China or Pakistan that those vehemently attacking the Indian state are prominently featured in our media.

Coming back to the Afzal case, justice is a subjective term which can often be bandied around rhetorically. Remember the advice given by US Supreme Court Justice Oliver Wendell Holmes to an agitated young lawyer, “This is a court of law, young man, not a court of justice.” Has the court of law done its job in this case? Yes, it has.

Forget the fact that Afzal Guru confessed to the crime in writing and then publicly in an open press conference (he didn’t deny it even in his last media interview to Sahil Makkar), many have claimed that he wasn’t provided with lawyers at any stage of the trial. Ram Jethmalani fought his case in the Supreme Court, and Shanti Bhushan the associated case of his cousin, Shaukat Hussain Guru.

He also had support of assorted NGOs, media columnists and pressure groups. The judgements of both the Supreme Court and High Court are detailed, answering all the questions raised by top lawyers. Moreover, if these courts were biased in this case, they wouldn’t have abrogated or commuted sentences awarded to other accused Kashmiris.

Much has been made of the phrase “to satisfy the collective conscience of a nation” in the Supreme Court’s verdict. As unfortunate and avoidable as the use of the phrase was, that is NOT the reason given for maintaining Afzal’s sentence. It was because the Supreme Court concluded that he was “proved to be the conspirator in this treacherous act”.

Nothing is perfect but the Supreme Court is better equipped than newspapers, TV studios and social media to determine guilt and innocence. It does not act out of malice or viciousness, or selectively target any region or religion. That is true in Afzal Guru’s case too. Let us be very clear and firm about that.

Sushant K Singh is Fellow for National Security at the Takshashila Institution and editor of Pragati-The Indian National Interest Review